| Kotlyar v Strogov |
| 2009 NY Slip Op 00352 [58 AD3d 693] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Alla Kotlyar, Respondent, v Emilia Strogov,Appellant. |
—[*1] Bonina and Bonina, P.C., Brooklyn, N.Y. (Tyrone F. Sergio of counsel), forrespondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendant appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), datedOctober 26, 2007, which, after an inquest on the issue of damages, awarded the plaintiff $50,000.
Ordered that on the Court's own motion, the appellant's notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); andit is further,
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Supreme Court, Kings County, for a new inquest on the issue of damages.
In her complaint, the plaintiff alleged damages which included pain and suffering, lostearnings, and medical expenses. After an inquest on the issue of damages, the court awarded theplaintiff $50,000, without specifying whether the award was for pain and suffering, lost earnings,and/or medical expenses. Under the circumstances, and given the speculative nature of much ofthe plaintiff's proof at the inquest (see Guerrero v Djuko Realty, 300 AD2d 542, 543[2002]; Schwartzman v Friedler, 279 AD2d 517 [2001]), and the court's error inadmitting uncertified medical records into evidence (see CPLR 4518 [c]; 2106; Abbas v Cole, 7 AD3d 649,649-650 [2004]; cf. Grasso v Angerami, 79 NY2d 813, 814-815 [1991]; Elder v Stokes, 35 AD3d 799[2006]; Nkhereanye v Hillaire, 35AD3d 419, 420 [2006]), [*2]we remit the matter to theSupreme Court, Kings County, for a new inquest on the issue of damages. Fisher, J.P., Miller,Carni and Balkin, JJ., concur.